Current Affairs

July 01, 2011

The healthcare law President Obama signed last year survived its first test before a federal appellate court Wednesday, as the 6th U.S. Court of Appeals in Cincinnati concluded that the law’s insurance requirement is constitutional.

“We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause,” the judges said in rejecting a legal challenge to the law by the conservative Thomas More Law Center.

The Thomas More lawsuit has not attracted as much attention as two other legal challenges being pushed by Republican state officials in Virginia and other states. Those suits are being reviewed by federal appellate courts in Atlanta and Virginia.

And few legal experts expect that the constitutionality of the Patient Protection and Affordable Care Act will be settled until it is reviewed by the U.S. Supreme Court, likely next year.

But the ruling Wednesday nonetheless marked a legal victory for the Obama administration and its Democratic allies, who have argued that Congress could require Americans to get health insurance starting in 2014...

On June 21, 2011, AAPD learned that the U.S. House Energy and Commerce Subcommittee on Health held a hearing to discuss “Dual-Eligibles: Understanding This Vulnerable Population and How to Improve Their Care.” This hearing focused on restructuring Medicare and Medicaid to be more effective and cost efficient for the 9 million Americans who qualify for both programs, beneficiaries commonly referred to as dual-eligibles.

Of these 9 million dual-eligibles, one third, or three million are people with disabilities. About two-thirds are elderly people. 43 percent of dual-eligibles have at least one mental or cognitive disability, while 60 percent have multiple chronic conditions. AAPD is very concerned about the three million people with disabilities who are dual eligibles as current discussions focus on capping, cutting or otherwise limiting the amount of funds both these programs receive.

The House Subcommittee on Health is chaired by Joe Pitts (R-PA) and the Ranking Member is Frank Pallone (D-NJ). Subcommittee chairman Pitts said, in his opening statement, “Dual eligibles are unique. …. more than half of dual eligibles live below the poverty line … [and] nineteen percent of dual eligibles live in an institutional setting.” Pitts added that dual-eligibles “are also more likely to be hospitalized, to go to emergency rooms, and to require long-term care than other Medicare beneficiaries.” Citing to the Kaiser Foundation statistics he said “ ... dual eligibles – who make up only 15 percent of Medicaid enrollment – consume 39 percent of total Medicaid spending.”

Ranking Member Pallone said “Congress and this Committee are increasingly concerned about the rising cost of Medicare health care coverage for the 45 million elderly and disabled Americans and Medicaid’s 55 million poor patients. So what better place to explore, understand and address than the sickest and most expensive populations to cover.” Pallone also said, “But we mustn’t set a price tag on their care nor should we shape policy with the goal of only saving money.”

Melanie Bella, Director of the Federal Coordinated Health Care Office Centers for Medicare and Medicaid Services (CMS) said benefits were provided totaling $120 billion in 2007 and this is increasing. This amount is twice as much as Medicaid spent on the 29 million children it covered that year.

Bella explained that since Medicare and Medicaid were designed each as individual programs that is the cause of many problems today. Since the two programs were not designed to be readily compatible, it is difficult for beneficiaries to navigate both sets of requirements, often resulting in fragmented and sub-optimal treatment, she said.

Bella said that CMS is working to make the two programs more user-friendly for dual-eligibles. These initiatives focus on patient-centered medicine that would hopefully lower costs through preventing or avoiding costly interventions. CMS hopes to do this through better state and federal coordination, learning from patient focus groups, and state-wide experimental initiatives that could be scaled to the national level if successful.

Four representatives from state and national programs that are currently providing medical coverage to dually eligible beneficiaries also spoke. These programs were presented as examples of how to solve the problems faced by beneficiaries who are dually eligible.

Billy Millwee, Associate Commissioner for Medicaid/CHIP, from the Texas Health and Human Services Commission spoke about a Texas state program called STAR+PLUS. The program features integration of acute care and long term support services, which Medicare and Medicaid currently do not provide. Additionally, STAR+PLUS partners with medical providers that take full financial and well-being responsibility, using financial incentives to lower overall costs.

Robert Egge, Vice President of Public Policy from the Alzheimer's Association, discussed the need for more support of unpaid caregivers and simplification of the Medicare and Medicaid systems. He urged the Subcommittee to remember that a large portion of the dual-eligible population has Alzheimer’s or dementia of some sort. In order for participants to have cohesive and comprehensive care, they must be able to easily navigate the medical system, he said.

President and Chief Executive Officer, Shawn Bloom, from National PACE Association, or the Program of All-inclusive Care for the Elderly outlined how and why her organization was considered the “gold standard” by government and private evaluations. Their programs are focused on community-based support that keeps the older population, above 65, out of nursing homes for as long as possible. She said that through patient-centered medicine -- as Bella advocated for -- PACE cuts costs while raising quality of care. Significantly, Bloom asked the Subcommittee to provide resources for dual-eligibles who are under 65 years of age, such as people with disabilities, to participate in PACE programs.

Lastly, Denise Levis Hewson, Director of Clinical Programs and Quality Improvement from Community Care of North Carolina (CCNC), emphasized the importance of local, personal care. CCNC functions by having the patient’s primary care physician direct all of his or her medical care. By having the primary care physician at the center, care is cohesive and comprehensive. Hewson stated her program “achieves ‘the triple aims’ of improving the health care of the dual population, improving the quality, access and reliability of care, and reducing the costs of care.” This appeared to be the goal of Subcommittee and panel members alike.

Outlook: It is unclear how this hearing will affect future policy changes in Medicare and Medicaid although it appears CMS could sponsor more initiatives or make national some of the newer approaches. However, disability advocates note that any federal entitlement programs that are expanding are being looked at very closely in the current conversations about the deficit, the debt limit and the budget for 2012.

1. If you are, or know someone who is, a beneficiary of both Medicare and Medicaid and you are a person under age 65 with a disability, and have encountered problems with the two programs, please let us know about them, either by commenting in the box below or email to policy@aapd.com

2. If you have had experience with any of the programs discussed above, such as in Texas or North Carolina, please tell AAPD more about this by commenting in the box below or email to policy@aapd.com

The National Council on Independent Living (NCIL) is very proud and excited to announce that a bill has been filed with the Senate HELP Committee which creates the establishment of a new Independent Living Administration (ILA), and strengthens America’s Independent Living (IL) Program. The ILA would elevate the IL Program at the federal level, and would create an organization independent of the Rehabilitation Services Administration (RSA) within the Department of Education.

The creation of this new administration marks a truly historic moment in the Independent Living Movement, and IL advocates across the country have much to celebrate this week.

The ILA is created through the reauthorization of the Rehabilitation Act of 1973, which is contained in the larger Workforce Investment Act (WIA). NCIL has been pushing for the reauthorization of WIA and the Rehabilitation Act for nearly a decade, and the introduction of a bill to reauthorize both pieces of legislation presents a unique opportunity to improve the IL Program and substantially increase consumer-control at the federal level.

AAPD recently learned about a new program by theU.S. Department of Housing and Urban Development (HUD). In conjunction with NeighborWorks® America, HUD announced the launch of the Emergency Homeowners’ Loan Program (EHLP).

The EHLP is designed to provide mortgage payment relief to eligible homeowners experiencing a drop in income of at least 15 percent directly resulting from involuntary unemployment or underemployment due to adverse economic conditions and/or a medical emergency.

Under the EHLP program guidelines eligible homeowners can qualify for an interest free loan which pays a portion of their monthly mortgage for up to two years, or up to $50,000, whichever comes first. Eligible homeowners must have current income at least 15% less than it was in 2009 and must be at least 90 days delinquent on the mortgage, among other eligibility factors.

For instance, you must have received a written notice from your mortgage lender/servicer indicating that you are delinquent on your first mortgage payments, referred to as a “Breach Letter.” Also, you cannot be in bankruptcy or owe unpaid federal income taxes or have unpaid federal student loans, among other criteria.

Possible loss of a house is one of the number one phone calls involving people with disabilities that we hear about at the AAPD national office. If you or someone you know is experiencing mortgage difficulties due to the continuing economic situation, explore if the EHLP program can help. Why lose your home through failing to check out a program and fill out the necessary paperwork?

There’s been a number of news articles recently stating that CMS will track hospital spending for Medicare recipients and will reward hospitals that keep costs down and penalize hospitals for costs incurred within 90 days after the person leaves the hospital.

It’s a “Medicare spending per beneficiary” device to measure hospital performance. For example, we have national data for infections occurring after surgery and/or as a result of just being in a hospital. Hospitals with much higher rates will be penalized. Similarly, there’s national data for heart attack mortality rates against which hospitals can be compared, rated, and then rewarded or penalized.

Obviously, besides improving medical care, rewards/penalties are an important strategy to control health costs, something everyone agrees is necessary.

We have a simple suggestion for CMS.

How about CMS including in its “Medicare spending per beneficiary” the measure of placement in nursing homes directly from acute care hospitals? This could actually be easily implemented because CMS could actually enforce its own federal regulations which require hospitals to do real and meaningful “discharge planning”?...

CMS - you have a financial interest, the regulatory authority, as well as an interest in the ADA’s mandate that services be provided “in the most integrated setting appropriate,” to address hospital dumping.

Include in the “Medicare spending per beneficiary” plan a measure of post-hospital placements. Reward hospitals that place people in the community with services and penalize hospitals with the worst dumping scores.

June 24, 2011

On Wednesday June 22, 2011, AAPD attended the U.S. Equal Employment Opportunity Commission’s (EEOC) meeting on “Disparate Treatment in 21st Century Hiring Decisions,” held in Washington, D.C. The EEOC is chaired by Jacqueline Berrien with Stuart Ishimaru, Constance Barker, Chai Feldblum, and Victoria Lipnic as Commissioners. The meeting looked at how discrimination during the hiring process affects minorities, including people with disabilities. Nine witnesses were called to provide evidence and discuss the impacts of disparate hiring practices.

During the opening statements, all Commissioners noted that working is not only important financially but also for an individual’s sense of self-worth and connection to their community. They also noted the difficulty of reporting and getting information to people who have been discriminated against in the workforce. It was discussed many times during the hearing that often people do not know they have been victims of hiring discrimination.

Recent Cases: EEOC General Counsel David Lopez described a successful court case where two deaf men were refused employment by Wal-Mart. The Courts ruled in the men’s favor and, as part of the settlement, a television ad was played for several weeks promoting the employment of people with disabilities. This ad was shown in the hearing and had a visible affect on the Commissioners. Lopez also described a clip from an ABC show “What Would You Do?” where two deaf women applied to be kitchen workers in a café and were refused jobs. While some customers stood up to the discrimination they saw, others gave the manager legal advice saying he should have accepted their applications and not called them instead of outright saying he wouldn’t hire them because they were deaf. These “advisors” were professional recruiters and managers.

Silent or Covert Discrimination: The first two panels focused on “silent discrimination,” where the employer doesn’t outright say or show that he or she is discriminating. This was a recurrent topic throughout the meeting. It especially came up during discussion of contingency or temporary staffing agencies, that is, companies that match employers with employees looking for work. Since hiring laws are different for the contingency agencies, many companies can get away with discriminatory hiring practices by using these types of companies.

Bill Lann Lee, an attorney at Lewis, Feinberg, Lee, Renaker, & Jackson on the first panel called this “covert discrimination.” Grace Speights, attorney at Morgan, Lewis, & Bockius, and Katherine Kores, an EEOC District Director in Memphis were also on the first panel. The second panel was composed of Supervising Trial Attorneys Kate Boehringer and Diane Smason at the EEOC Baltimore and Chicago offices, respectively, with Ana Lopez and Jeannette Wilkins as Charging Party Members in two major EEOC cases. This panel highlighted the real life challenges of workforce discrimination and gave an in-depth look at how companies use covert discrimination.

Research and Training Issues: Marc Bendick from Bendick & Eagan Economic Consultants and General Counsel Rae Vann from the Equal Employment Advisory Council, a non-profit employer association, discussed discrimination research and training on the third and last panel. Bendick provided staggering statistics about the prevalence of discrimination in the workforce and also specific industries that were especially “hard core discriminators.” For instance, he said that 20-25 % of people have encountered hiring discrimination across all fields of the workforce. Advertising and construction industries were among the worst with about 67% discriminating against applicants.

Vann concluded the meeting by outlining the training programs that the EEAC has developed over the past few decades to reduce workplace discrimination. The hope is to change the attitude within all offices so that anti-discrimination is company policy, not just federal law.

Reduced Federal Medicaid Payments in 2012: Many States Already Cutting Back

By David Heymsfeld, AAPD Policy Advisor

In recent weeks supporters of Medicaid have focused on advocating against proposals, such as block grants and global spending caps, which could lead to drastic reductions in future federal funding of Medicaid. The threats of these proposals have obscured the fact that even if none of these proposals are enacted there are provisions in existing law which will result in less spending for Medicaid in 2012 than in 2011. In many states this is likely to lead to reduced Medicaid services including for people with disabilities and their family members.

Background: In the Medicaid program, each state establishes its own program although it must work within federal requirements. The federal government helps fund each state’s program, with the federal share averaging about 57%. Medicaid is the largest expense in state budgets, and constituted about 22% of total state spending in 2010.

Federal Cutbacks Taking Effect on July 1, 2011: As you may recall, there was legislation passed in 2009 to combat the recession, that is, the American Recovery and Reinvestment Act, also referred to as “the stimulus.” This temporarily increased the federal share for Medicaid by about 10%, resulting in the states receiving about $87 billion in increased funding. This increased rate of funding ends on July 1, 2011. However, at the same time, the needs are growing. For instance, as a result of the recession, Medicaid enrollment increased by 8% in 2010, with estimated growths of 5% in 2011 and 4% in 2012.

With federal funding to be reduced by 13% in Fiscal 2012, most states are planning some increases in their own funding, but not enough to close the gap. Overall Medicaid funding is expected to decrease 3%. With the lower funding, most states are planning some changes to limit costs of their programs.

How States Cut their Medicaid Programs: These changes include reduced provider payments in 33 states, making it more difficult for Medicaid patients to find providers willing to treat them. Other measures include limitations on benefits to be carried out in 25 states. Another 13 states will put limitations on prescription drugs. New or higher co-payments will occur in 21 states and there will be expansions of managed care in 19 states. In fact, many states are proposing more than one of these changes. For instance, Table 29 (page 57) lists which states have cut or plan to restrict community-based care (CA, MN, NY, WA).

Note that the so-called Maintenance of Effort (MOE) provisions included in the health care reform Act prevent the states from making other changes such as increasing income eligibility levels or otherwise making it more difficult for individuals to apply.

This will give you some sense of what your state is looking at in regard to Medicaid. For instance, Table 28 shows some specific strategies states are using. Note also that the states are considering ways to increase revenues (Table 30).

Contact your governor’s office or state legislator to learn about specific proposals to cut back Medicaid in your state.

Protest early and often any cuts that are unfair to people with disabilities or revenue enhancements that unfairly burden people with disabilities and their families.

WASHINGTON – The Department of Justice released a new technical assistance document describing public entities’ obligations and individuals’ rights under the integration mandate of title II of the Americans with Disabilities Act (ADA) and the 1999 landmark Supreme Court decision, Olmstead v. L.C. The Olmstead decision held that the ADA requires public entities to provide community-based services to persons with disabilities when such services are appropriate; the affected persons do not oppose community-based treatment; and community-based services can be reasonably accommodated. The document also provides questions and answers on a variety of ADA enforcement issues related to Olmstead.

Additionally, in commemorating the 12th anniversary of the Olmstead decision yesterday, the department launched a new section of its ADA website, www.ada.gov/olmstead, providing information and resources about the decision and its enforcement. In addition to the newly created technical assistance document, users can visit the site to find briefs filed by the Department, as well as other materials relevant to this important area of law.

The ADA website provides easy access to an extensive collection of ADA technical assistance materials and settlement agreements, as well as information about enforcement, mediation, technical assistance and certification activities and links to other sites with ADA information. The addition of the new Olmstead section of the site will provide critical information to individuals with disabilities, advocates and state and local officials responsible for complying with the ADA’s integration mandate...

June 23, 2011

The memories of living in institutional settings since the age of 13 will always be with Lois Curtis even though her life today is beyond what she ever could have imagined when she made the first of many brave phone calls to my office at the Atlanta Legal Aid Society saying, “I want to get out!” The journey (and struggle) from that day includes an historic Supreme Court decision, a home of her own and a successful career as an artist. And now, a meeting with President Barack Obama in the Oval Office as we observe the 12th anniversary of the Olmstead decision.

The Olmstead story began long before the Supreme Court decision. Lois and another plaintiff, Elaine Wilson (who passed away in 2004), were in a state psychiatric hospital in Georgia. They filed suit in 1995 seeking disability services in the community...

...And, as we all now know, the U.S. Supreme Court eventually held that the unjustified institutional isolation of people with disabilities is a form of unlawful discrimination under the Americans with Disabilities Act, thus taking a giant step forward for the millions of people with disabilities across the country.

Lois’ story did not end after that landmark Supreme Court decision. In fact, that decision launched a new journey. After living in staffed residential homes since her release from the institution, Lois now rents a beautiful home in the Stone Mountain area of Georgia...

June 22, 2011

On Anniversary of Olmstead, Obama Administration Recommits to Assist Americans with Disabilities

On June 22, 1999, the Supreme Court ruled in Olmstead v. L.C. that, under the Americans with Disabilities Act (ADA), the unjustified institutional isolation of people with disabilities was a form of unlawful discrimination. Since taking office, the Obama Administration has taken many steps to uphold both the letter and the spirit of the ADA.

“The landmark Olmstead case affirmed the rights of Americans with disabilities to live independently,” said President Obama. “On this anniversary, let’s recommit ourselves to building on the promise of Olmstead by working to end all forms of discrimination, and uphold the rights of Americans with disabilities and all Americans.”

Since the Olmstead ruling, much progress has been made. Many individuals have successfully transitioned to community settings, but waiting lists for community services have grown considerably and many individuals who would like to receive community services are not able to obtain them...

Frankie Mastrangelo is the moderator for both the Justice For All (JFA) national email listerv as well as for the JFActivist blog. She is also an organizer for the American Association of People with Disabilities in Washington, D.C.